Electronic Discovery and Computer Forensics Case List (Organized by Topic)

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1 Electronic Discovery and Computer Forensics Case List (Organized by Topic) TABLE OF CONTENTS Discoverability... 2 Procedure Production of Data Costs Preservation & Spoliation Sanctions Work Product Doctrine & Privilege Experts Computer Forensic Protocols Admissibility

2 Discoverability In re Biomet, 2013 WL (N.D. Ind. Apr. 18, 2013). In this behemoth multidistrict litigation, the defendants used key word search to cull 19.5 million documents prior to leveraging predictive coding. Pointing to commentary questioning the efficacy of key word search, the Plaintiffs Steering Committee alleged that the defendants tainted the [search] process by sharply reducing the data universe to 2.5 million documents primarily with key words. Instead, the plaintiffs argued that the defendants should go back to square one with predictive coding. The defendants countered by evoking the proportionality principle at Fed.R.Civ.P. 26(b)(2)(C), stating that the benefits of starting over with predictive coding would be outweighed by the burden of doing so. The court framed the relative positions of the parties succinctly: It might be well that predictive coding, instead of a keyword search would unearth additional relevant documents. But it would cost Biomet a million, or millions, of dollars to test the Steering Committee s theory that predictive coding would produce a significantly greater number of relevant documents. The court found that the defendants were allowed to carry on with their chosen search approach and encouraged both parties to continue to confer over future discovery. Optiver Aus. Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., 2013 WL (N.D. Cal. Jan 23, 2013). After traditional discovery in this misappropriation case was unavailing, the plaintiff issued a subpoena to Google seeking s and Google Talk messages sent by the defendant s employees. The plaintiff sought, among other things, information pertaining to s, attachments and Google Talk messages containing specified search terms as well as information contained in the subject lines of various ESI. Moving to squash the subpoena, the defendant argued that the ESI sought is protected content under the Stored Communications Act (the SCA ). The court stated that the contents of an electronic communication is defined under the SCA as any information concerning the substance, purport, or meaning of that communication. The court held that the requests based on key word search necessarily reveal that the s identified contain the [key terms], which are words contained in the body of the communications exactly the sort of information the SCA sought to protect. Similarly, the court equated the requested subject line information to substantive information found in the body of a message or , noting that a message's subject line is nothing less than a pithy summary of the message's content. The court denied the key word request in its entirety and disallowed the portion of the second request that involved requests for subject line information. The court, however, permitted narrow requests for other metadata. Garcia v. City of Laredo, 2012 U.S. App. LEXIS (5th Cir. Tex. Dec. 12, 2012). In this employment case, the issue was whether a cell phone is a facility protected by the Stored Communications Act. The Stored Communications Act prohibits accessing without permission a facility through which an electronic communication service is provided. The plaintiff, a police dispatcher, was fired for violating police department rules. Text messages and images on the plaintiff s phone, which depicted the plaintiff s violation of police department rules, were accessed without plaintiff s permission by a police officer s wife, who then showed them to city officials. The court explained that while the term facility is not defined in the statute, courts have interpreted the statute to apply to telephone companies, internet or service providers, and bulletin board services, but not to an individual s computer, laptop or mobile device. The court further explained that the facilities that the SCA protects are not computers that enable the use of an electronic communication service, but instead are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage. For those main reasons, the 2

3 appellate court affirmed the judgment of the district court in holding that the plaintiff s phone was not an SCA-protected facility. Richards v. Hertz Corp., 2012 WL (N.Y. App. Div. 2d Dept. Nov. 14, 2012). In this personal injury suit arising out of an automobile accident, the defendant sought all status reports, s, photographs, and videos posted on the private portions of the plaintiff s Facebook page. The defendants alleged that production was warranted because one of the plaintiffs posted to Facebook pictures of herself skiing, which were directly relevant to the plaintiff s testimony that the accident impaired her ability to play sports and caused her to suffer pain that was exacerbated in cold weather. The court found that the defendants met their burden, showing that the public images and other portions of the plaintiff s Facebook profile were reasonably calculated to lead to the discovery of information bearing on the plaintiff s claim E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., 2012 WL (D. Colo. Nov. 7, 2012). In this sexual harassment case, the defendant moved the court to compel production of information contained on the social media accounts of many of the twenty to twenty-two female class members. To show that the information sought was likely to be relevant, the defendants pointed to several publicly-available Facebook posts. For example, one plaintiff-intervenor s Facebook posts contained information about her emotional state, her financial expectations in this lawsuit, her post-termination employment, and her outlook on life post-termination. Viewing each of these categories as potentially relevant to the case, the court stated that if the information was contained on pages filed in the Everything About Me folder, it would need to be produced. Addressing whether the result should be different because the information is on Facebook, the court reasoned that volitionally storing and sharing the information on Facebook presents an even stronger case for production, at least as it concerns any privacy objection. Lifeng Chen et al. v. New Trend Apparel, Inc. et al., 2012 WL (S.D.N.Y. Oct. 2, 2012). In this case, two intervenor defendants moved to compel an inspection of a computer and production of documents from defendants New Trend Apparel and its principle, Ms. Byunglim Louie. Specifically, the movants asked for two items: first, Louie s computer, on which she uploaded relevant recordings of conversations, and second, a set of boxes of documents located in her apartment, notwithstanding the representation by counsel that movants had previously been given the CDs that contain these documents. The court granted the inspection of the boxes, but denied the inspection of the computer. The court stated that such inspections are granted only under limited circumstances when there is reason to believe that a litigant has destroyed evidence. Just because the recordings were uploaded onto the computer, the court reasoned, does not justify a forensic search of the computer. The court summarized, It is possible that movants are confusing a forensic search of a computer to be carried out at the behest of a discovering party with so-called e-discovery, which is conducted by the discovered party pursuant to a plan that is either agreed to by the litigants or ordered by the court. Mailhoit v. Home Depot U.S.A. Inc., 2012 WL (C.D. Cal. Sept. 7, 2012). In this employment discrimination case, the defendants requested broad discovery of the plaintiff s social networking accounts to evaluate the plaintiff s claims about her emotional and mental state. The defendants argued that such a broad request was valid because most modern communications between friends and/or about an individual s emotional state are communicated via social media. Noting similarities to EEOC v. Simply Storage Mgmt. which granted broad discovery of social media the court noted that other case law suggested that the Federal Rules do not grant a requesting party a generalized right to rummage at will through information that [the plaintiff] has limited from public view. As such, the court held the request to Fed. R. Civ. P. 34(b), which holds the requesting party to a reasonable particularity standard for discovery requests. Reviewing the 3

4 requests under this lens, the court found that three of the four categories of social media communications sought by the defendants failed to meet the standard imposed by Rule 34(b) and were thus not reasonably calculated to lead to the discovery of admissible evidence. Specifically, the request for communications related to any emotion, or in context were considered overly vague and far from reasonably particular. Although the court denied three of the four requests, they granted the defendants fourth request for social media communications between the plaintiff and her coworkers that referenced the defendants or her pending lawsuit. Robinson v. Jones Lang LaSalle Americas, Inc., 2012 WL (D. Or. Aug. 29, 2012). In this employment discrimination case, the defendant motioned to compel several categories of ESI from the plaintiff. Notably, the defendant s sought all social media content involving [the plaintiff] since July 1, 2008 that reveals or relates to [the plaintiff s] emotion, feeling, or mental state related to the alleged events in the plaintiff s complaint. Reviewing the defendant s requests, the court noted that although the plaintiff opposed the social media request separately, the court saw no principled reason to articulate different standards for the discoverability of text message, or social media platforms and analyzed the reasonableness of all ESI sought together. Specific to the social media data request, the court turned to EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010), which recognized that social media was useful in proving or disproving a party s allegations and allotted broad discovery of social media. Finding that the plaintiff had already agreed to provide social media content directly referencing her allegedly discriminatory supervisor, the Magistrate Judge opted to apply a standard similar to Simply Storage and ordered broad disclosure of the plaintiff s social media content. Finally, the court clarified the scope of the compelled production, noting that although it is inherently difficult to define precise limits of reasonableness, counsel was expected to determine what falls within the scope of the order in good faith Thompson v. Autoliv ASP, Inc., 2012 WL (D. Nev. June 20, 2012). In this products liability case, the defendant moved to compel the injured plaintiff to produce complete and unredacted copies of [her] Facebook and other social networking site accounts. The defendant stated that prior to that formal motion, it obtained wall posts and photographs from the plaintiff s public Facebook profile that stood in contrast to her injury claims, and that the plaintiff changed her privacy settings shortly thereafter. In response, the plaintiff argued that the defendants request was an overly broad fishing expedition with no legitimate basis or relevance. Noting that relevance within the meaning of Fed. R. Civ. P. 26(b)(1) is considerably broader than relevance for trial purposes, the court found the plaintiff s social networking material discoverable. However, the court also extended the plaintiff some level of privacy, given her right to protection from annoyance, embarrassment, oppression, or undue burden, and directed the defense counsel not to disclose the material to anyone other than support staff. People v. Harris, 2011NY (NY Crim. Ct. New York Co. June 30, 2012). In this criminal matter arising out of the Occupy Wall Street protests, the court reviewed Twitter s motion to quash a subpoena, which ordered the production of tweets and pertinent metadata from a user s account. The threshold determination required an assessment of whether the criminal defendant or the third party respondent (Twitter) had standing to quash the subpoena. In line with the court s previous ruling on this matter, the court pointed to Twitter s terms and policy, holding that Twitter not the criminal defendant had standing to challenge the subpoena. Addressing Twitter s contention that responding to numerous subpoenas would result in an undue burden (and thus barred by the SCA), the court held that because all third party respondents bear this burden, the argument cannot be used to create standing for a defendant where none exists. Further, the court noted that it does not take much to search and provide the data to the court. The court found that 4

5 Twitter s services fall within the statutory definition of both an Electronic Communication Service (ECS) (generally, a communication service) and a Remote Communication Service (RCS) (generally, a storage service for substantive posts and metadata produced by the chat service). Equating public tweets to yelling on the street, the court further determined that the posts were not private and thus not outside of the scope of the SCA. Ultimately, the court largely denied Twitter s motion to quash the subpoena, holding that the prosecutor must obtain a search warrant for tweets within 180 days of the decision date to comply with the SCA. People v. Harris, 2012 WL (N.Y. Crim. Ct. April 20, 2012). In this case, the defendant sought to quash a subpoena seeking information from his Twitter account following his arrest for disorderly conduct during an October 2011 Occupy Wall Street Protest. As part of its prosecution, the District Attorney s office sent a subpoena duces tecum to Twitter, seeking tweets posted during a specified timeline from the defendant s alleged Twitter account. The defendant sought to quash the subpoena in his own right or, alternatively, intervene in the proceedings to quash as an affected party. Reviewing the record, the court analogized the Twitter account information to the bank records of a customer s account, to which the customer lacks ownership, possession, and standing to challenge a subpoena. Analyzing the nature of a Twitter account in which a user must agree to terms of service that grant Twitter the unfettered right to publicly post that user s information immediately the court held that the defendant had no proprietary or privacy interest in its tweets and ultimately lacked standing. The court further denied the motion to intervene, holding the subpoena would not prejudice the substantial rights of the intervening party because the subpoena was sought to address defenses the DA anticipated from the defendant. Finally, the court analyzed the subpoena under the Stored Communications Act (SCA), and found the subpoena adhered to all of the SCA s provisions for disclosure from a service provider of electronic communications. Tucker v. American Intern. Group, Inc., 2012 WL (D. Conn. Mar. 15, 2012). In this unlawful discharge claim against a former employer s insurer, the plaintiff sought to compel inspection of allegedly relevant electronic records in the possession of her non-party former employer. Noting that it had already turned over several hundred responsive documents, the former employer argued that allowing the plaintiff further investigation for missing s would be unduly burdensome under 26(b)(2)(C). In order to show that additional discovery would be unnecessarily duplicative, the former employer described that the plaintiff had already had some prior success in discovering the sought-after s through alternative methods of discovery and that the plaintiff could only speculate that the employer actually possesses the information. Carving out its undue burden argument, the former employer pointed to the affidavit of an IT director who contended that the plaintiff s computer had been repurposed pursuant to company policy since her termination. While the plaintiff s hard drive had been mirror-imaged, the image was indistinguishable from the images of eighty-two other employers terminated at the time of a force reduction. In order to allow for further investigation, all eighty-three images would have to be restored[,] analyzed and hosted on a new server. Noting that courts should protect non-parties from significant expense and burden of compelled inspections, the court agreed with the former employer and cited Zubalake to stay the further investigation. Custom Hardware Eng g & Consulting, Inc. v. Dowell, 2012 WL (E.D. Mo. Jan. 3, 2012). In this trade secret litigation, the plaintiff submitted a discovery proposal that accounted for acronyms and misspellings of specified search terms. The defendants objected, believing such terms were overbroad and offered their own proposal that required precise matches of the search terms. Responding, the plaintiff objected that the defendants proposal was unduly narrow and likely to prevent the production of discoverable ESI. Before analyzing the parties claims, the court 5

6 advised the parties to exercise greater civility to avoid putting the court in the position of having to craft keyword search methodology without adequate information. Responding, the court found that each of the defendants concerns lacked evidence to substantiate their fears of producing irrelevant or privileged documents, further noting that the plaintiff s requests were well within the defendants duty to produce all responsive information. Additionally, when reviewing the defendants proposed list, the court found that requiring exact keyword matches would fail to produce relevant documents, effectively stifling the plaintiff s discovery efforts. As such, the court ordered that discovery be conducted according to the plaintiff s proposed search terms. Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. Jan. 2012). In this slip and fall case, the defendants sought a court order granting it access to the plaintiff s entire Facebook account. Citing McMillen v. Hummingbird Speedway, Inc. and Romano v. Steelcase, Inc., the defendants asserted that nonpublic Facebook postings are generally not protected by any privacy privilege. Next, the defendants attempted to show that the private portions sought were reasonably calculated to lead to admissible evidence. The defendants argued that publicly available photos of the plaintiff standing at a birthday party in Florida while holding a small dog were inconsistent with her claims of inability to work and enjoy life. While the court agreed with defendants that there is no such thing as a social media privilege, it noted that the defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Distinguishing McMillen and Romano, the court ruled that the defendant s preliminary showing was not enough to show any inconsistency with the plaintiff s damage claims. Offenback v. L.M. Bowman, Inc., 2011 WL (M.D. Pa. June 22, 2011). In this personal injury case, the defendants requested an in camera review of the plaintiff's Facebook and MySpace accounts, arguing the plaintiff's claims of physical and psychological impairment made relevant any evidence that documented the plaintiff's social life, physical capabilities and emotional state of mind. To the extent that such information was relevant under Fed.R.Civ.P. 26, the plaintiff agreed that limited public information on his Facebook account was discoverable and provided the password to the court (the plaintiff claimed he could no longer access his MySpace account). Upon review, the court agreed to the relevance of a limited amount of photographs and postings that reflected the plaintiff continued to ride motorcycles, went hunting and rode a mule, and ordered production of this information. In a closing footnote, the court stated it was confused as to why intervention was necessary since the parties agreed that at least some of the information was relevant. The court further noted the plaintiff should have reviewed his own Facebook account for potentially responsive information, only soliciting the court's assistance if a dispute remained. Muniz v. United Parcel Serv., Inc., 2011 WL (N.D. Cal. Jan. 28, 2011). In this employment discrimination litigation, the plaintiff moved to quash the defendants' third party subpoena seeking additional documentation related to the plaintiff's previous motion for attorney fees. Among the documentation sought by the defendants were postings by the attorney on listservs and social media networks (including LinkedIn and Facebook). To demonstrate the relevancy of the demand, the defendants submitted postings from the attorney's Facebook page and listservs. Denying the defendants' request for this information, the court found the subpoena was not appropriately geared toward revealing information relevant to the fee dispute and ordered the postings submitted by the defendants to be removed from the record. The court also noted that the dispute had already "spiraled into the kind of wasteful and time consuming satellite litigation' that should not occur in post-trial fee disputes." In the Matter of the Application of the U.S. of Am. for an Order Directing a Provider of Elec. Commc n Serv. to Disclose Records to the Gov t, 620 F.3d 304 (3d Cir. 2010). In this ongoing criminal investigation, the federal government appealed a twice-denied request to compel 6

7 production of a customer s historical cellular tower data, also known as cell site location information (CSLI). The government sought the CSLI of unidentified subscribers pursuant to a court order under 2703(d) of the Stored Communications Act (SCA). Reviewing the magistrate judge s analysis, the court rejected the premise that because CSLI could potentially be used to track individuals, it required the traditional probable cause necessary for a warrant. Citing legislative history and two U.S. Supreme Court decisions, the court found that CSLI would only encroach upon reasonable expectations of privacy if used to track individuals out of public view an inference not supported by the record. However, the court determined 2703(c) created a sliding scale standard, granting a judge discretion to require the government to obtain a warrant based on probable cause. Holding that 2703(d) provided the minimum standard required, the court vacated the order and remanded for additional fact finding. McMillen v. Hummingbird Speedway, Inc., No CD (C.P. Jefferson Sept. 9, 2010). In this personal injury litigation, the defendants sought production of the user names, log-in names and passwords granting access to the plaintiff s Facebook and MySpace accounts. Having found comments on the public portions of the plaintiff s social media sites indicated the plaintiff exaggerated his injuries, the defendants argued that private portions might similarly contain impeaching content. Objecting, the plaintiff contended that communications shared among private friends on social network sites are confidential and thus protected against disclosure. Equating the plaintiff s argument with a request for a new social network site privilege, the court expressed concern that recognizing such a privilege would contravene the purpose and policy of Pennsylvania s broad discovery rules. Thus, finding no reasonable expectation of confidentiality given the clear language contained on both sites regarding the possibility of disclosure, no subjective or objective relational need for privilege outside of attorney-client communications and a failure to outweigh the interests of justice, the court ordered the plaintiff to preserve existing information and provide his Facebook and MySpace user names and passwords to the defendants counsel. Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010). In this personal injury action, the defendants sought access to the plaintiff s current and historical Facebook and MySpace accounts, including all deleted pages and related information, which may have contained information inconsistent with claims made concerning the extent and nature of the plaintiff s injuries. The court found that the public portions of the plaintiff s social networking sites contained content that was material and necessary to the litigation, and discerned a reasonable likelihood that the same would hold true as to the private portions. Despite the plaintiff s objections on privacy grounds, the court cited privacy disclaimers in the MySpace and Facebook policies, and held that production of the plaintiff s social network account entries would not violate her privacy rights. The court also found the defendant s need for the information outweighed any privacy concerns, and determined that preventing access would directly contravene the strong public policy in favor of open disclosure and condone attempts to hide relevant information behind self-regulated privacy settings. Noting commentary that privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking, and that sharing personal information with others is the very nature and purpose of social networking sites the court ordered the plaintiff to provide necessary authorization for access. In re Payment Card Interchange Fee and Merch. Disc. Antitrust Litig., 2010 WL (E.D.N.Y. Aug. 27, 2010). In this ongoing antitrust litigation, the defendants appealed an order compelling the production of recordings and reports created pursuant to an investigation by the European Commission into the defendants business practices in Europe. Joining the defendants as amicus curiae, the Commission argued the information was confidential under European law 7

8 and that the doctrine of international comity should deny access to the plaintiffs. Analyzing the foreign and domestic interests using the balancing test in the Restatement (Third) of Foreign Relations Law 442, the court acknowledged the U.S. policy of broad discovery oriented toward increasing fairness and accuracy in litigation and noted that foreign laws purporting to restrict disclosure of information relevant to U.S. litigation are generally ineffective. On the other hand, the court found that the Commission s interests would be significantly undermined if its confidentiality rules were disregarded, the documents originated in Europe and the information could be obtained through other avenues. Despite the fact that the requested documents were likely to contain relevant information, the court denied disclosure finding the interests of international comity weighed in favor of the Commission. Crispin v. Christian Audigier, Inc., 2010 WL (C.D.Cal. May 26, 2010). In this dispute over artwork licensing, the plaintiff moved to quash the defendants subpoenas on the social networking sites Facebook, MySpace, Inc. and Media Temple, Inc., which sought the plaintiff s basic subscriber information and certain electronic communications. Appealing the magistrate judge s order, the plaintiff claimed the Stored Communications Act (SCA) prohibits third-party Internet Service Providers from disclosing such communications. Agreeing with the plaintiff that some communications sought were not strictly public, the court quashed the subpoenas that sought private messaging (such as -type communications). With respect to the portion of subpoenas that sought information from the plaintiff s Facebook wall and MySpace postings and comments, the court vacated and remanded for further investigation to determine the plaintiff s privacy settings and the extent of access allowed to his Facebook wall and MySpace comments. Cornwell v. N. Ohio Surgical Ctr., Ltd., 2009 WL (Ohio App. 6 Dist. Dec. 31, 2009). In this wrongful death litigation, the defendants appealed the trial court's ruling allowing the plaintiff's forensic expert to create a mirror image of the defendants' hard drives. The defendants asserted such intrusive access was not authorized under Fed.R.Civ.P. 34 and would violate prohibitions against the disclosure of confidential medical information. In affirming the trial court's order, the appellate court dismissed the confidentiality argument, relying on testimony of the plaintiff's expert explaining that viewing confidential information was not necessary to the forensic imaging process. The court also discarded the defendants' Rule 34 argument, noting that the circumstances surrounding the case gave rise to an inference of improper conduct on part of the defendants. In further support of the trial court's decision, the court noted the direct relationship between the plaintiff's claims and the hard drives and said the specific protocol and search terms established by the trial court made the defendants' arguments meritless. Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL (W.D. Wash. Apr. 30, 2009). In this discovery dispute, the plaintiff sought production of s from a specified time period. The defendant argued the s were archived on the company's "cumbersome" old system and were not reasonably accessible under Fed.R.Civ.P 26(b)(2)(B). In support of the position, the defendant's information technology representative made several claims, including that accessing the s would be disruptive to business operations and would take nearly four years to restore. The representative also provided an initial cost estimate for the work of $88,000, but upped the ante six months later to $834,285. The court noted that the representative "provided exaggerated reasons and exaggerated expenses as to why the [defendant] allegedly [could not] or should not be ordered to comply with its discovery obligations." The court found that the plaintiff should not be disadvantaged since the defendant, a "sophisticated" company, chose not to migrate the s to the now-functional archival system and thus determined that the s were reasonably accessible. Furthermore, the court explained that even if the information was ruled not reasonably accessible, good cause existed to order production. 8

9 Calixto v. Watson Bowman Acme Corp., 2009 WL (S.D. Fla. Nov. 16, 2009). In this tortious interference of a contract suit, the plaintiff alleged the defendant "spoliated electronic documents in the face of ongoing litigation." As such, the plaintiff sought an order requiring the defendant to obtain and fund a restoration and search of its 37 backup tapes. The defendant argued the backup tapes were not reasonably accessible and that no further relevant evidence existed on the tapes as a litigation hold was in effect. Finding the plaintiff failed to establish a reasonable expectation that the benefit of restoring the backup tapes would outweigh the burden, the court declined to impose the significant costs to restore, search and review the tapes on the defendant. The court also declined to impose sanctions because no bad faith existed regarding the defendant's IT employee's deletion of an box as part of a regular practice. However, the court concluded one of the backup tapes may contain discoverable records because it was unclear when the box deletion occurred and ordered the tape's restoration and search. Lake v. City of Phoenix, 2009 WL (Ariz.Ct.App. Jan. 13, 2009). In this special action to compel the defendant City to produce public records, the plaintiff appealed a lower court decision denying his motion to compel the production of metadata. The plaintiff argued metadata was necessary to determine whether the produced notes were backdated and for authentication purposes. The defendant argued that metadata is not a public record. Agreeing with the defendant, the court affirmed the lower court s holding that metadata is not a public record and need not be produced. Aguilar v. Immigration & Customs Enforcement Divis. of United States Dept. of Homeland Security, 2008 WL (S.D.N.Y. Nov. 21, 2008). In this civil rights class action alleging unlawful searches of homes, the plaintiffs sought production of metadata from various types of ESI including , word and excel documents and databases. Noting that the production of metadata should have been discussed at the Fed.R.Civ.P. 26(f) conference, the court went on to consider the various metadata production requests. Regarding s and backup tapes, the court found the plaintiffs requests untimely and too costly for the little benefit potentially gained. The court then discussed Word documents and PowerPoint presentations and ordered the production of metadata if the plaintiffs were willing to bear all costs associated with its production; despite finding the metadata sought was marginally relevant, not critical to pretrial presentation and was untimely requested. Additionally, declining to find production unduly burdensome for Excel spreadsheets, the court granted production of the metadata as requested from Excel files. Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008). In this case, the plaintiffs appealed the district court s ruling, claiming the defendants violated the Stored Communications Act ( SCA ) and their Fourth Amendment rights by producing plaintiff s text messages to the police department. The police department claimed it sought the plaintiffs text message transcripts to determine if the usage overages the plaintiffs incurred were due to personal messages. Categorizing the defendant service provider as an electronic communication service (ECS) that knowingly provided transcripts of the text messages to the defendant City who was merely a subscriber and not an addressee or intended recipient of such communication, the court determined the defendant violated the SCA and remanded the case to the district court. The court also agreed with the plaintiffs that the search violated the Fourth Amendment, finding that the plaintiffs had a reasonable expectation of privacy in the text messages stored on the service provider s network and that the search was conducted unreasonably and intrusively. Flagg v. City of Detroit, 2008 WL (E.D.Mich. Aug. 22, 2008). In this ongoing wrongful death action, the court previously determined text messages of certain city employees were potentially discoverable and established a protocol under which two designated magistrate judges would make the initial determination as to their discoverability. In this current dispute, the 9

10 defendants sought to prevent discovery from going forward, arguing that the court s previous order violated the Stored Communications Act ( SCA ), claiming it wholly precludes the production of electronic communications stored by a non-party service provider in civil litigation. Rejecting the defendants reading of the SCA, the court held that possession for purposes of requiring production includes control over the information, which defendants maintained through its contractual relationship with the non-party service provider. However, the court was willing to modify the means of production - holding that the third party subpoena was unnecessary and instead the court ordered the plaintiff to file a Fed.R.Civ.P. 34 production request. See also Flagg v. City of Detroit, 2008 WL (E.D.Mich. Mar. 20, 2008). Sprenger v. Rector and Bd. of Visitors of Va. Tech, 2008 WL (W.D.Va. June 17, 2008). In this disability and civil rights litigation, the plaintiff filed a motion to quash a subpoena issued by the defendants to a third party agency, seeking all electronically stored information on various pieces of media utilized by her husband. Specifically, the defendants sought sent between the plaintiff and her husband regarding her medical condition. The plaintiff argued the subpoena was overbroad, burdensome and sought records protected by spousal privilege. The defendants argued that any spousal privilege was obviated by the fact that both the plaintiff and her husband were state agency employees and the state has both the right to monitor employee and a written policy which provides employees should have no expectation of internet privacy. In this case of first impression, the court considered persuasive precedent and determined the defendants did not meet their burden of demonstrating a waiver of privilege after noting the defendants had provided no evidence that the plaintiff or her husband were aware of the internet usage policy, and thereby granted the plaintiff s motion. Hope for Families & Cmty. Serv., Inc. v. Warren, 2008 WL (M.D. Ala. May 15, 2008). In this gaming regulation dispute, the plaintiffs filed a motion to compel production. The defendants provided numerous defenses to the plaintiffs motion, claiming the documents and electronic information were protected by attorney-client privilege; the request sought trade secret and competitive information; the documents sought were not relevant; and the request was overbroad and unduly burdensome. Granting in part the plaintiffs motion to compel, the court ordered production of specified requested documents finding the documents to be relevant. The court referenced a previously entered protective order to ease the defendants fears regarding a potential exposure of trade secrets. Additionally, the court stated that a future review will be completed to determine attorney client privilege issues. City of Seattle v. Prof l Basketball Club, LLC, 2008 WL (W.D.Wash. Feb. 25, 2008). In this dispute over performance of a lease agreement, the plaintiff filed a motion to compel the defendant to search and produce responsive s from six of its eight members. Having produced 150,000 s from two of the members, the defendant objected to this request, claiming the search would increase the universe exponentially and would generally produce irrelevant documents. Finding a principal-agent relationship between the defendant and its members, the court determined sufficient cause to demand the documents from its members as the defendant was in possession, custody or control of the s at issue. The court, therefore, ordered the defendant to produce from the remaining four members at issue, finding the defendant s claim of burden to be insufficient under Fed.R.Civ.Pro. 26(b)(2)(B). Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL (N.D.Ga. Feb. 25, 2008). In this employment discrimination suit alleging company-wide sexual harassment, the plaintiffs filed a renewed motion to compel the defendants to produce documents, including s, that were sexual or of a gender derogatory nature from 1998 through The defendants claimed the e- mail was not reasonably accessible due to undue burden and cost as it required the restoration of 10

11 numerous backup tapes and claimed fees of $79,300 for restoration from a single employee over a two year period. Agreeing with the defendants, the court found the burden of the request to outweigh the likely benefit and limited the retrieval to two narrow categories of (1) undeleted of current employees specifically named by the plaintiffs; and (2) any relevant s of the nature cited by the plaintiff of which the defendants were aware of and had retained. Additionally, the court denied the plaintiffs request for spoliation sanctions, finding the defendants document destruction policy reasonable. Arista Records LLC v. Does 1-7, 2008 WL (M.D.Ga. Feb. 25, 2008). In this copyright infringement suit, the plaintiffs filed a motion seeking expedited discovery to obtain basic information about the alleged infringers from the third-party Internet Service Provider. The plaintiffs sought the name, current and permanent address, phone number, address and Media Access Control address for the individuals linked to the Internet Protocol addresses involved in the alleged distribution of the copyrighted materials over the peer-to-peer file sharing network at issue. The court granted the motion based on good cause established by the lack of other means to obtain the information and the prima facia showing of copyright infringement, combined with the expediency created by the limited retention of user activity logs. Simon Prop. Group, Inc. v. Taubman Ctr., Inc., 2008 WL (E.D.Mich. Jan. 24, 2008). In this suit involving securities and tort claims, the defendant contested the enforcement of third-party subpoenas. The defendant argued that compliance with the subpoenas would be unduly burdensome and expensive since the search terms provided by the plaintiffs resulted in the identification of over 250,000 files. The defendant claimed it would take three full-time employees four weeks to determine the responsiveness of those documents. The plaintiffs offered to narrow the scope of the search by time period, search terms and perhaps even limit the number of servers to be searched. The court granted the plaintiffs motion to enforce the subpoenas, holding the requests were not unduly burdensome as discovery of electronic files are common place in business litigation. Eckhardt v. Bank of America, 2008 WL (W.D.N.C. Jan. 9, 2008). In this wrongful termination suit based on alleged disability discrimination, the plaintiff filed a motion to compel responses to several interrogatories and document requests. The defendant objected to several of the plaintiff s requests claiming the requests did not lead to the production or discovery of relevant evidence. Disagreeing with the defendant, the court ordered the defendant to certify that a thorough search was conducted and outlining what responsive, but not readily accessible, documents might be retained in archive form or backup media. Hubbard v. Potter, 2008 WL (D.D.C. Jan. 3, 2008). In this suit, the plaintiffs claimed they were denied an interpreter at safety meetings, preventing them from safely and properly performing their duties. The defendant filed a motion to end pre-certification discovery, arguing the plaintiff had adequate time to complete discovery. The plaintiffs argued that the defendant s production was insufficient and incomplete. The court granted the defendant s motion and found that the plaintiffs failed to show that documents produced by the defendant permitted a reasonable deduction that other documents existed and refused to rely on the plaintiffs mere hunch or speculation. The plaintiffs also claimed additional discovery was warranted due to the defendant s labeling of responsive documents as non-responsive and failing to initially produce them. Based on this argument, the court ordered an evidentiary hearing to determine whether additional production may be warranted. Kellogg v. Nike, Inc., 2007 WL (D.Neb. Dec. 26, 2007). In this patent infringement suit, the plaintiff filed a motion to compel, alleging the defendants response to production requests was slow and evasive in regard to electronically stored information. The plaintiff also sought 11

12 documents from a privilege log allegedly created prior to the defendants knowledge of the impending litigation. In regard to the first issue, the plaintiff argued that the defendants failed to provide information regarding document retention and preservation policies. Subsequent to the filing of the motion, the plaintiff deposed a Rule 30(b)(6) witness regarding the defendants document retention policy. At the time of the hearing, the plaintiff did not dispute he had all the information sought with regard to information document storing. As such, the court did not compel the defendants to supplement their discovery responses. Because of the plaintiff s failure to make a good faith effort to resolve the discovery issue and the defendants willingness to produce the requested information, the court refused to impose sanctions. In regard to the privilege log, the plaintiffs argued that privilege did not apply as the documents were generated before the threat of litigation and the underlying facts are not privileged. The court disagreed with the plaintiffs in that the document creation date controlled the privilege analysis and held that the documents were protected by the attorney-client privilege and therefore not discoverable. Kelly v. Montgomery Lynch & Assoc., 2007 WL (N.D.Ohio Dec. 13, 2007). In this lawsuit, the plaintiff filed a motion to compel discovery necessary to support a motion for class certification. The defendant claimed the discovery request was unduly burdensome because the filing system was not maintained in a searchable format. Finding the defendant did not make a reasonable inquiry into the discovery request apart from claiming an undue burden, the court ordered the defendant to comply with the plaintiff s narrowly tailored discovery request. Additionally, the court strongly advised the parties to make a sincere attempt at cooperation in the discovery process. The court further warned the defendant that a failure to comply will result in the consideration of sanctions. Palgut v. City of Colorado Springs, 2007 WL (D.Colo. Dec. 3, 2007). In this suit, the plaintiff filed a motion to reconsider discovery rulings made by the magistrate judge and to compel responses to previous discovery requests and further discovery to prove unlawful spoliation of ESI. The court made several findings: the plaintiff s requests were overbroad and unduly burdensome (affirming a prior ruling); the defendant completed an adequate search for all relevant ESI and agreed to complete and pay for an additional search; according to Rule 34 of the FRCP, the plaintiff was no more entitled to the defendant s ESI than to a warehouse storing paper documents; and the defendant s backup tapes were not reasonably accessible due to the lack of hardware to access them and the cost of restoration, which outweighed any possible return of relevant information. Based on these findings, the court denied the plaintiff s motions and ordered each party to pay their own attorney fees. In re Boucher, 2007 WL (D.Vt. Nov. 29, 2007). In this criminal case, the defendant was stopped at the customs and border station while entering Vermont from Canada. Agents searched his laptop and found what appeared to be images of child pornography. The defendant was arrested and charged with transportation of child pornography. After imagining the defendant's hard drive, agents learned they were unable to further access the files on the drive because the files were encrypted, password protected and inaccessible. Thereafter, the government subpoenaed the defendant and directed him to provide all documents that reflected the password. The defendant moved to quash the subpoena, claiming compliance would violate his Fifth Amendment right against self incrimination. The court reiterated the requirements for Fifth Amendment protection as: a compelled, testimonial communication that is incriminating in nature. The court determined that a subpoena constitutes compulsion because it requires compliance and as the files sought allegedly contained child pornography, entry of the password would therefore be incriminating. As such, the contentious issue was whether entry of the password constituted a testimonial communication. The court held that entering a password into a computer communicates 12

13 facts that convey the contents of one s mind, and therefore found the act of entering this password to be testimonial, implicitly demonstrating that the defendant knew the password and had access to the files. The court therefore granted the defendant's motion to quash the subpoena. Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL (D.Minn. Nov. 29, 2007). In this claim alleging inter alia, breach of contract, the plaintiff, a commercial tenant, brought suit against the defendant landlords. Following the issuance of the magistrate judge s discovery order, both parties filed objections. The plaintiff objected to the magistrate judge s order as it required production of an alternative database prepared for another litigation. The defendants objected to the magistrate judge s order to the extent that it denied the defendants motion to compel the plaintiff to fulfill its discovery obligations. After conducting a Fed. R. Civ. P. 26(b) and Zubulake analysis, the court found that the high costs associated with restoring the database did not allow the previous discovery database to be reasonably accessible. In response, the defendants claimed that the plaintiff should have been on notice of potential production and thus had a duty to preserve the database due to this pending litigation. Disagreeing with the defendants objection, the court found the database to be relevant in any potential litigation and that specific discovery requests did not exist to create an obligation to maintain the database. The court then conducted a good cause analysis using seven factors as required by Fed. R. Civ. P. 26(b)(2)(B) to determine if discovery using the database should be permitted. Despite the defendants concerns, the court found that the absence of specific arguments to connect the concerns to the magistrate judge s discovery order could not constitute sufficient good cause to order restoration of the database. U & I Corp. v. Advanced Med. Design, Inc., 2007 WL (M.D.Fla. Nov. 26, 2007). In this breach of contract case, the defendant filed a second motion to compel and sought sanctions for insufficient compliance with the first motion to compel, claiming the plaintiff failed to produce numerous attachments, relevant correspondence and certain critical documents identified by Bates number. The plaintiff countered with a motion for a protective order, arguing that the request was unduly burdensome as the parties already exchanged over six thousand pages. The court was not persuaded by the plaintiff s vague assertion and denied the motion for the protective order. The defendant also subpoenaed similar documents from a non-party who sought to squash the subpoena, claiming undue burden. The court was again not persuaded by the lack of detail provided as to the efforts required to comply and upheld the subpoena. Before ruling on the issue of sanctions, the court ordered the plaintiff to submit an affidavit from its corporate representative detailing the cause of the missing information and efforts undertaken to retrieve it. Am. Fast Freight, Inc. v. Nat l Consolidation & Distribution, Inc., 2007 WL (W.D.Wash. Nov. 7, 2007). In this suit alleging breach of contract, the plaintiffs filed a motion to compel discovery of material relevant to the claim that the defendant intentionally used a corporate alter ego to evade duties to the plaintiffs. The defendant argued that the sought after information would not lead to the production of relevant information and that the burden of production outweighed the plaintiffs likely benefit. The court ordered production consistent with the plaintiffs request and listed five factors relevant in determining the burden question: 1) the needs of the case; 2) the amount in controversy; 3) the parties resources; 4) the importance of the issue at stake; and 5) the importance of the proposed discovery. Further, court found that the breadth of the discovery requests justified the defendant s failure to produce documents and denied the plaintiffs request for attorney s fees. Muro v. Target Corp., 2007 WL (N.D.Ill. Nov. 2, 2007). In this suit, the plaintiff alleged the defendants sent unsolicited credit cards in the mail which violated the Truth in Lending Act and sought class-action certification. Several discovery disputes ensued, involving questions regarding 13

14 the discoverability of the defendants litigation hold notices and adequacy of the defendants privilege log. The court upheld the magistrate judge s finding that the defendants litigation hold notice was protected by the work-product doctrine. Relying upon Upjohn Co. v. United States, 449 U.S. 383 (1981), the court found that Fed. R. Civ. P. 26(b)(5)(A) does not require privilege logs to separate entries of multiple s within the same string and that a single of a forwarded chain to counsel is protected by the attorney-client privilege. However, the court found serious defects in the defendants privilege log because it failed to identify all of the recipients of some messages and the plaintiff was unable to assess whether recipients fell within the sphere of corporate privilege. The log also used sometimes-cryptic job titles to explain the recipients of e- mails, which made it difficult to assess the applicability of privilege. The court allowed the defendants ten days to submit a revised privilege log addressing the above defects so the court could perform an in camera review and determine privilege protection. Benton v. Dlorah, Inc., 2007 WL (D.Kan. Oct. 30, 2007). In this employment discrimination suit, the defendants moved to compel the plaintiff to produce documents responsive to their requests for production and the hard drive of the plaintiff s personal computer. The defendants also sought sanctions for the plaintiff s failure to provide complete responses and alleged destruction of evidence. The defendants argued that the plaintiff admittedly deleted and failed to produce relevant communications with her husband and students. Further, the plaintiff used her personal computer to send and delete hundreds of responsive s, therefore, entitling the defendants to the plaintiff s personal computer hard drive for retrieval of the deleted e- mails. The plaintiff objected, claiming the hard drive contained personal, privileged information beyond the scope of discovery. The court ordered the plaintiff to produce her personal computer for inspection by a forensic specialist, limited in scope to topics responsive to the production requests, and ordered the plaintiff to pay $1,000 in sanctions to reimburse the defendants for costs associated with filing of this motion. Sims v. Lakeside School, 2007 WL (W.D.Wash. Sept. 20, 2007). In this discovery dispute, the defendant made an image of the plaintiff s employer-owned laptop with no objection from the plaintiff. Shortly thereafter, the plaintiff objected, prompting the defendant to file this motion to compel review of the hard drive. The court found the plaintiff had no reasonable expectation of privacy since the laptop was furnished by his employer and clearly articulated in the employee manual. The court granted the defendant s request to review the contents of the plaintiff s hard drive excluding web-based generated s, communications between the plaintiff and his spouse (marital communications privilege) and communications between the plaintiff and his attorney (attorney client privilege). Agreeing with the defendant s proposal as to how the hard drive should be imaged, the court ordered the defendant to provide, at its expense, the parties with a list of files from the plaintiff s computer, allowing the plaintiff a chance to review for any privileged files. State ex rel. Gehl v. Connors, 2007 WL (Wis.Ct.App. Oct. 18, 2007). In this dispute over the production of public records, the petitioner appealed the circuit court s decision to deny his petition seeking communications under the public records law. The petitioner claimed county government officials improperly denied his request per the public records law and wrongfully failed to retain responsive s. The petitioner additionally requested the search of approximately 150 backup tapes and more than thirty employees computer hard drives for over 20 keywords. Affirming the circuit court s decision, the court found the petitioner s request to be overbroad and overly burdensome, finding that the right to inspect public records is not absolute. The court noted that the request virtually sought every passed between all employees of the county named in the request over a two-year period. In addition, the court stated that the search terms chosen by 14

15 the petitioner were broad on their face as to require the production of records relating to virtually all county zoning matters over a two-year period. State v. Wells, 2007 WL (Minn.App. September 25, 2007). In this criminal case, the defendant was charged with illegal dissemination and possession of child pornography and motioned the court to compel the state to provide copies of all electronic information and a forensic copy of his seized computer hard drive. The district court denied the motion and certified the question to this court to determine whether the state is required to produce such information in a child pornography case. The defendant argued withholding the information sought violated his right to effective assistance of counsel and due process of law, but the court did not agree. Noting that under federal law the state is prohibited from producing child pornography to a defendant and that child pornography is contraband, the court affirmed the trial court s decision. Tomlinson v. El Paso Corp., 2007 WL (D.Colo. Aug. 31, 2007). In this retirement benefits litigation, pension plan participants sought production of electronic pension plan records from the defendant employer. The defendant maintained it could not produce the data because it was in the possession of a third-party plan record-keeper. The plaintiffs argued that the defendant had a duty under the Employment Retirement Income Security Act (ERISA) to maintain the data for inspection or examination. In light of the defendant s obligations under ERISA, the Court held the data was in the defendant s possession, custody or control within the meaning of Fed. R. Civ. P. 26(a)(1)(B) and subsequently ordered production of the requested documents. Columbia Pictures, Inc. v. Bunnell, 2007 WL (C.D.Cal. Aug. 24, 2007). In this copyright infringement litigation the defendant, the operator of a website engine that enables users to locate and download dot-torrent files, sought review of a magistrate's order requiring production of server log data stored in random access memory (RAM). The defendant argued that data stored in RAM is too ephemeral and temporary to be considered electronically stored information (ESI) within the meaning of Fed. R. Civ. P. 34(a). Citing the Advisory Committee Notes to the Rules, the court explained that Fed. R. Civ. P. 34(a) was to be read expansively and denied the motion. Responding to concerns about the potential impact of the decision with respect to individual and business record-keeping obligations, the court held the decision was limited to the defendant in this case, who, only after the issuance of a court order, was obliged to preserve and produce the server log data. In re Seroquel Prod. Liab. Litig., 2007 WL (M.D.Fla. Aug. 21, 2007). In this multidistrict product liability litigation, the plaintiffs motioned the court to impose sanctions on the defendant for failing to timely comply with discovery obligations. The plaintiffs pointed to numerous instances where the defendant failed to produce documents in an accessible or useable format, in addition to missing numerous deadlines. While the court found two of those instances to be excusably negligent, the other behavior warranted sanctions. The court was extremely displeased with the defendant s failure to discuss keyword search terms with the plaintiffs, failure to include page breaks between documents it did produce, failure to produce usable single-page tiff documents, omission of attachments and relevant s, and purposeful sluggishness in making an effective production. The court stayed the determination of which sanctions to impose to allow the plaintiffs an opportunity to present evidence as to their damages or prejudice. Butler v. Kmart Corp., 2007 WL (N.D.Miss. Aug. 20, 2007). In this case, the plaintiff motioned the court to order the defendant to comply with earlier discovery requests and argued that defendant s mere attempt to locate documents did not sufficiently discharge its discovery obligations. The defendant produced affidavits attesting to its search efforts for documents at the relevant locations and lack of results, but mentioned very little about whether it conducted searches of its computer systems. The court ordered the defendant to produce responsive ESI or 15

16 demonstrate unsuccessful diligent searching. The plaintiff also sought open access to the defendant s home office databases, but the court denied the motion based on the lack of evidence of improper action. KnifeSource, LLC v. Wachovia Bank, N.A., 2007 WL (D.S.C. Aug. 10, 2007). In a suit alleging common law and UCC conversion, the plaintiff motioned the court to compel the defendant s production of all bank statements from a specified person who allegedly altered the payee information on checks to deposit them in her personal account at the defendant s bank. The defendant claimed it could not comply with such request, arguing that it did not maintain copies of the statements and therefore such an order would require it to create documents for the sole purpose of complying with this discovery request. As the defendant merely claimed it did not maintain physical copies of the requested information, not that it did not have the information, the court held that it failed to demonstrate the information was not reasonably accessible. The court ordered the defendant to comply with the request to the extent the information was maintained electronically. Modern Eng'g, Inc. v. Peterson, 2007 WL (C.D.Ill, July 16, 2007). In this employment contract dispute, the plaintiff alleged the defendant ed sensitive information to the plaintiff's largest competitor in an attempt to gain employment with that competitor. The plaintiff sought production of all electronic communications sent by the defendant to certain third parties and the defendant objected, arguing they did not belong to him and were in the possession of his current employer. The court held that the defendant was not obligated to produce documents in the care, custody or control of his employer, but ordered him to produce responsive documents that were in his own care, custody or control, regardless of the ownership of those documents. State of Ohio v. Rivas, 2007 Ohio App. LEXIS 3299 (Ohio.App. July 13, 2007). In a suit where the defendant challenged his conviction for importuning and attempted unlawful sexual conduct with a minor, the defendant challenged the trial court s denial of his request to obtain a copy of the police department s hard drive where records of online chats were stored. The defendant argued he was entitled to review of the transcripts and should not be required to rely on the representations of the adverse party. The state argued that its interest in safeguarding the details of other investigations contained on the hard drive outweighed the defendant s request to have access to the hard drive. The trial court agreed with the state, but the appellate court reversed that holding, requiring the state to allow the defendant a reasonable means of verifying the accuracy and completeness of the transcript to meet the requirements of the right to a fair trial and the right of an accused to confront the evidence against him. The court suggested the trial court conduct an in camera review to verify the transcript. Kasten v. Doral Dental USA, LLC, 2007 WL (Wis. June 22, 2007). In a suit by a nonmanaging member of a limited liability company seeking to review company records, the district court held was neither a record nor a company document. The district court determined that was just a communication like a telephone call, not a document or record. The plaintiff appealed this distinction, and the Wisconsin Supreme Court reversed. Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL (S.D.Ohio June 12, 2007). In this case, the plaintiff requested the court enter a discovery order, allowing its computer forensic expert to search the defendant s computer systems, network servers, databases and backup tapes for the last nine years. The plaintiff also sought to compel the re-production of ESI previously produced in hard copy form and the production of deleted documents. The defendant argued the request for a forensic examination was not authorized as a matter of course by the Fed. R. Civ. P. amendments in 2006 and that its production was proper since the plaintiff's requests made no such production format specification. The defendant further argued the deleted information sought by the plaintiff 16

17 was inaccessible and not relevant. The court found the plaintiff s request for an intrusive examination of its opponent's computer systems was based on mere suspicion that the defendant may be withholding discoverable information and denied the request. On the production format and request for deleted documents discovery issues, the court ordered the parties to further meet and confer. Calyon v. Mizuho Securities USA, Inc., 2007 WL (S.D.N.Y. May 19, 2007). In a suit alleging violation of the Computer Fraud and Abuse Act, breach of fiduciary duty, unfair competition, inter alia, the plaintiff motioned the court to compel the defendants to produce mirror images of the hard drives of their personal computers and other computer storage devices to the plaintiff s computer forensic expert for inspection. The plaintiff alleged the defendants used and small computer storage devices to remove vast quantities of the plaintiff s confidential and proprietary data. While the defendants agreed to preserve the hard drives by creating mirror images, the parties disagreed as to who should inspect the mirror images. The plaintiff argued their expert should have complete access to the images, and the defendants argued that granting the plaintiff s expert unfettered access would impermissibly invade the privacy rights of the defendants and their non-party family members who also used the computers. The defendants proposed their own expert should inspect the mirror images using search terms provided by the plaintiff, or that the search be performed by an independent third-party expert. The court referred to the committee notes of Fed. R. Civ.P. 34(a), which states that a party is not entitled to a routine right of direct access to a party s electronic information system, although such access might be justified in some circumstances. The court held the plaintiff failed to show how its direct access was justified under these circumstances. As the defendants expert was fully capable of performing the search, as well as working with the plaintiff s attorney, the court found no reason to introduce an additional layer of expertise by requiring an independent expert. The court ordered the defendants to preserve the mirror images in question and to make their expert accessible for consultation with the plaintiffs counsel and expert on an on-going basis. O Bar v. Lowe s Home Centers, Inc., 2007 WL (W.D.N.C. May 2, 2007). In this class action suit, the plaintiffs alleged the defendant engaged in employment discrimination because they are not females or minorities. Having addressed whether the plaintiffs had standing to represent a class, the court determined the time ripe for the parties to begin precertification discovery. The plaintiffs claimed they were entitled to broad discovery of electronic documents, including , relating to all employees, in all positions, in every store owned by the defendant. The defendant disagreed with this contention. The court held that the plaintiffs could not obtain discovery for every person employed by the defendant, and limited the discovery to managers and officers at the regional, district and national level. The court noted that although the precertification discovery was limited, it was still very broad and the court was in no way condoning or encouraging broad, unduly burdensome, or irrelevant discovery requests. The court instructed the parties to construct a Rule 26(f) discovery plan. Anticipating the potential conflicts of discovering electronically stored information (ESI), the court ordered the parties to follow the Suggested Protocol for Discovery of Electronically Stored Information as set forth by the United States District Court for the District of Maryland. The court noted that although these guidelines provide a comprehensive list of ESI discovery issues, it was not meant to be an inflexible list. Moreover, the court set forth an extensive list of issues to be addressed by the parties in their joint discovery plan. Gragg v. Int l Mgmt. Group (UK), Inc., 2007 WL (N.D.N.Y. Apr. 5, 2007). In an action initially centering on various breach of contract and related claims, the magistrate judge found the defendant s disclosure of four privileged s to plaintiff s counsel was inadvertent and did not provide a basis for waiving attorney-client privilege. The s in question were compiled along 17

18 with approximately 200 other s by an assistant in the defendant s in-house legal department and produced on CD-ROM. Neither outside nor in-house counsel reviewed the CD-ROM for privileged material before it was sent to the plaintiff. After an appeal by the plaintiff, the magistrate s discovery order was reversed and remanded for additional consideration. In the interim, the plaintiff supplemented his original complaint with several federal RICO related claims. Characterizing the bulk of the claims as matters of federal question jurisdiction, the magistrate judge held that federal law governed any privilege determinations in the suit. Weighing factors outlined under federal law, the magistrate found the defendant had waived privilege as to the inadvertently produced s. In particular, he cited a lack of reasonable precautions to prevent disclosure and the relatively low volume of s produced in total as reasons for that conclusion. However, the magistrate declined to find that the scope of the waiver extended to the subject matter of the s, as the plaintiff urged, and held that the waiver only extended to the produced materials. Koninklijke Philips Elec. N.V. v. KXD Tech., Inc., 2007 WL (D. Nev. Mar. 20, 2007). In a discovery dispute, the plaintiff filed an emergency motion with the court to clarify its discovery order with respect to the defendants' production of documents. The plaintiff anticipated less than adequate discovery responses from the defendants in responding to the court s order. The plaintiff also expressed concern that the defendants not be permitted to simply produce an unorganized body of electronic or paper records which the plaintiff would then be required to search through to locate documents responsive to particular requests. The defendants claimed that they did not have to produce the electronic data because during the plaintiff s original seizure of documents, several hard drives and servers belonging to the defendants were damaged and many documents were lost. The court did not find the defendants arguments credible; instead, the court noted that the defendants had not produced any evidence to show that the hard drives were damaged and that no information could be gleaned from the drives. The court further cautioned that it could order a computer forensics examination of the alleged damaged drives to determine if the defendants were truthful and to establish if any discoverable information was retrievable. Furthermore, the court warned that the costs of the examination and sanctions could be imposed on either party, depending on what the investigation revealed. Keystone Fruit Mktg., Inc. v. Brownfield, 2007 WL (E.D. Wash. Mar. 14, 2007). In a misappropriation of trade secrets case, the plaintiff alleged that one of its former employees opened and used a key document on her laptop after being fired from the plaintiff s company. The employee was then hired by the defendant who is a competitor in the field. The fired employee stated that she merely opened up the document and viewed it and argued that it was only speculation that the document was given to or used with the defendant s business. She also claimed that any documents belonging to the plaintiff were destroyed. However, the plaintiff conducted a computer forensics analysis on the hard drive of the employee s laptop and home and work computers. The analysis showed that the employee retained the plaintiff s data and files on her home computer and that some of those files also existed in her account and on the computers at the defendant s company. This evidence was contrary to the employee s testimony that she destroyed all of plaintiff s data and did not use the plaintiff s computer data in her new employment. Based on these facts, the court allowed the plaintiff to amend its complaint to supplement claims against the defendant. Gibson v. Ford Motor Co., 2007 WL (N.D. Ga. Jan. 4, 2007). In a product liability case, the plaintiff motioned the court to compel the defendant to produce a copy of its litigation hold notice as part of discovery. The litigation hold notice had a list of the documents the defendant wanted its employees to preserve for the pending litigation. The court ordered the document did not have to be produced to the plaintiff since it was closely related to attorney-work product material. The court 18

19 noted that litigation holds are often over inclusive and the documents on the notice often do not bear any relevance to the actual litigation. The court also cautioned that compelled production of this notice would encourage other companies from not issuing litigation hold notices under fear of possible disclosure and adverse consequences. Bank of Amer. Corp. v. SR Int l Bus. Ins. Co., 2006 WL (N.C. Super. Nov. 1, 2006). The defendants sought deleted s from 400 backup tapes of Marsh, Inc., a broker of the plaintiff and non-party to the litigation. Marsh previously produced over 50,000 documents for the litigation but the defendants argued all relevant s may not have been produced. Marsh argued, as a non-party, the defendant s request would impose an undue burden and expense. Marsh s expert from Kroll Ontrack stated such recovery and organization could cost as much as $1.4 million. The defendants argued Marsh may have only produced s responsive to the subpoena and none that related to the claims and defenses of the case. The court denied the defendants motion because such a low level of marginal utility does not justify imposing a heavy burden on a nonparty nonparties should not be penalized for having a backup system by making them produce inaccessible backup data without good cause. Additionally, the court found no evidence that Marsh had failed to produce responsive documents or that the requested s would show anything contrary to the s already produced. NOTE: The court listed this as the companion case to Analog Devices Inc. v. Michalski, 2006 WL (N.C. Super. Nov. 1, 2006), which was filed concurrently by the court. Analog Devices Inc. v. Michalski, 2006 WL (N.C. Super. Nov. 1, 2006). In a misappropriation of trade secrets matter, the defendant compelled the court to order the production of inaccessible s from over 400 back-up tapes held by the plaintiff. The plaintiff objected because the production would require an undue burden and cost and would not likely uncover any probative evidence. The court examined five factors using a straightforward application of North Carolina Rule 26. It also noted the Guidelines from the Conference of Chief Justices would provide the proper legal guidance for e-discovery issues. The court analyzed and balanced the following factors: (1) the burden and expense of production; (2) the needs of the case; (3) the amount in controversy; (4) any limitations on the parties' resources; and (5) the importance of the issues at stake. The court found the potential for discovery of probative evidence was too great to deny Defendants motion and the evidence central to the defendants case may be uncovered by the inquiry. However, the court noted the discovery costs were unknown and reserved the right to re-examine any cost-shifting issues until the final costs were determined by the plaintiff. The court required the parties to equally split the costs of restoration. NOTE: This case is the companion case to Bank of Amer. Corp. v. SR Int l Bus. Ins. Co., 2006 WL (N.C. Super. Nov. 1, 2006), which the court filed concurrently. Wyeth v. Impax Lab. Inc., 2006 WL (D. Del. Oct. 26, 2006). In a patent infringement claim, the defendant filed a motion to compel electronic documents from the plaintiff in their native file format with complete metadata instead of in the already produced TIFF format. The defendant argued it was entitled to an entire electronic database of documents in its natural state, but the plaintiff argued there was no particular need for the native files. Agreeing with the plaintiff, the court found the parties did not agree to produce native files at the pre-discovery conference. The court also noted the defendant could not show a need for the native file documents. The court used Delaware s Default Standard for Electronic Discovery as authority and stated if parties cannot agree to a file format before discovery occurs, imaged files shall be the default format. The plaintiff also argued in favor of shifting half of the discovery costs to the defendant, which included imaging a large amount of documents for a litigation database. The court denied the cost-shifting claim because the defendant is not the only party benefiting [sic] from the organization of these 19

20 documents into the database. It held the plaintiff was also a beneficiary of its imaged files and it was not equitable to force the defendant to pay for the electronic organization of the opposing party s database. U.S. v. Ziegler, 456 F.3d 1138 (9th Cir. 2006). In an appeal from Montana district court, defendant claimed that child pornography and other information found on his workplace computer was protected as private information under the 4th Amendment. Plaintiff argued that a workplace computer is much like a locked desk drawer in an office and that a similar expectation of privacy should follow. However, the government argued that no employee can possibly have an expectation of privacy when the computer and internet access is paid for by the employer and when there is an entire company department dedicated to monitoring employee s internet use. The court held that the defendant could not have an objective expectation of privacy since his employer published and practiced a computer monitoring policy. The court noted that the defendant s personal password protection did not increase privacy expectations. Furthermore, the court stated that if the employer did not have a properly practiced policy in place, than an objective expectation of privacy may have existed for defendant. However, the court concluded [s]ocial norms suggest that employees are not entitled to privacy in the use of workplace computers. Del Campo v. Kennedy, 2006 WL (N.D. Cal. Sept. 8, 2006). During a claim under the Fair Debt Collection Practices Act, plaintiff filed a motion to prevent the destruction of documents and for an order requiring the parties to meet and confer to develop a document preservation plan. Defendant s company implemented a telephone recording system for one month where all calls were recorded and saved on digital media. Plaintiff claims that defendant circulated an internal memo during litigation advising employees to discard the recorded information in the normal course of business. Defendant argued that it wanted to be relieved from the "burden" of maintaining the digital evidence. However, the court refused to accept that maintaining digital evidence was a burden and ordered the defendant to preserve all electronic evidence. The court also ordered the parties to meet and confer to develop a preservation plan for electronic evidence. Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (2006). In a fraudulent transaction case, plaintiffs requested the court to order the production of s created almost two years prior to the alleged misconduct. Plaintiffs request required defendant to restore several backup tapes at a significant cost. Defendant argued that there was no obligation to restore any backup tapes because the tapes were meant only for disaster relief recovery and not for possible litigation. The court ruled that the defendant did not have to produce all responsive documents under plaintiffs requests as it was not entirely convinced that relevant and responsive documents would be found. However, the court held that defendant must perform an abbreviated search using a small sample of dates and search terms as supplied by the plaintiff. If the small search returns positive results, the plaintiff would be given leave to move the court for further electronic searches of the backup tapes. Furthermore, the court held that all costs, including attorney s fees would be paid by plaintiff after the defendant supplied proper affidavits and the court determined that such cost-shifting was warranted. Quon v. Arch Wireless Op., 445 F.Supp.2d 1116 (C.D. Cal. 2006). In a suit claiming 4th Amendment and federal statutory violations, the court determined that public employees who send text messages through department-issued pagers are protected by the 4th Amendment. The plaintiffs, police department employees, were issued pagers by their employer police department. The department had a loose policy of reviewing the text messages sent on these pagers; however, they did not uniformly implement the policy of reviewing employee s text messages. Plaintiffs argued that reviewing private text messages on department-issued pagers constituted an illegal search under the 4th Amendment and was an unreasonable invasion of privacy. The defendants 20

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